282 A.3d 1161
Pa. Super. Ct.2022Background:
- Appellant Andre Boyer, a former Philadelphia police officer and online commentator, was served a grand jury subpoena and on September 5, 2019 was sworn as a witness before the supervising judge of the Thirtieth Investigating Grand Jury (Investigation C-22) and given a secrecy oath and an on-the-record verbal nondisclosure order.
- Boyer acknowledged on the record that he understood he could not reveal information learned from the grand jury proceeding and could consult counsel about disclosures.
- On August 23, 2020 Boyer posted a video on his website asserting the existence and subject of the grand jury investigation (naming a high‑ranking police inspector and related allegations).
- The Commonwealth filed a Rule to Show Cause; hearings were held (Oct. 29, 2020; Apr. 20, 2021; May 6, 2021) addressing whether Boyer violated the September 2019 nondisclosure order and grand jury secrecy oath.
- On May 10, 2021 the trial court found Boyer guilty of indirect criminal contempt, imposed no fine or jail, but entered a written order prohibiting Boyer from posting or discussing grand jury materials or targets without leave of court; Boyer appealed.
Issues:
| Issue | Commonwealth's Argument | Boyer’s Argument | Held |
|---|---|---|---|
| 1. Due process / notice of contempt charge | Boyer received clear notice: the court explained the secrecy obligations and issued a Rule to Show Cause charging indirect criminal contempt | No adequate notice of specific indirect criminal contempt charge or whether civil/criminal sanctions sought | Affirmed: ample on-the-record warnings and Rule to Show Cause satisfied notice; no due process violation |
| 2. Enforceability of September 5, 2019 verbal order | Verbal order was on the record (stenographically recorded), Boyer acknowledged and understood it, so it is enforceable | Oral order not reduced to a written decree; relying on In re Tumpson, oral orders lack force | Affirmed: on-the-record bench statements constitute an enforceable order; Tumpson distinguished because that order was not recorded |
| 3. Jurisdiction / § 4549(d) and overbreadth of May 10, 2021 order | § 4549(d) limits prohibition on disclosure of a witness’s own testimony, but Boyer did not testify before the grand jury; court had jurisdiction and May 10 order reasonably narrowed; leave process preserves rights | Court lacked jurisdiction under § 4549(d); May 10 order is overbroad and infringes First Amendment / defense preparation | Affirmed: § 4549(d) inapplicable to disclosure of existence/subject of investigation when not testifying; May 10 order not overbroad because it permits leave to disclose |
| 4. Sufficiency — clarity of order and wrongful intent | Order was definite on the record; Boyer understood prohibition; publishing the video was volitional and showed wrongful intent | Order vague and ambiguous; Boyer lacked clear understanding and lacked wrongful intent | Affirmed: elements of indirect criminal contempt (clarity, notice, volitional act, wrongful intent) proven beyond a reasonable doubt |
Key Cases Cited
- Commonwealth v. Lambert, 147 A.3d 1221 (Pa. Super. 2016) (sets elements for indirect criminal contempt)
- Commonwealth v. Walsh, 36 A.3d 613 (Pa. Super. 2012) (standard for sufficiency and contempt elements)
- In re Tumpson, 345 A.2d 774 (Pa. Super. 1975) (oral order unenforceable where not recorded)
- Jackson v. Hendrick, 746 A.2d 574 (Pa. 2000) (on‑the‑record bench statements may be relied upon)
- Commonwealth v. Mayberry, 255 A.2d 548 (Pa. 1969) (definition of indirect criminal contempt)